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      The Charges That Were Notably Absent From the Trump Indictment

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      An indictment this week did not accuse former President Donald Trump of inciting the mob that attacked the Capitol, but it did show that some close to him knew violence might be coming.There was something noticeably absent when the special counsel, Jack Smith, unsealed an indictment this week charging former President Donald J. Trump with multiple conspiracies to overturn the 2020 election: any count that directly accused Mr. Trump of being responsible for the violence his supporters committed at the Capitol on Jan. 6, 2021.The indictment asserted that as violence erupted that day, Mr. Trump “exploited the disruption,” using it to further his goal of stopping the certification of his loss in the election. But it stopped short of charging him with actually encouraging or inciting the mob that stormed the building, chasing lawmakers from their duties.Still, the charging document, filed in Federal District Court in Washington, made abundantly clear that a group of aides and lawyers surrounding Mr. Trump were highly aware that he was playing with fire by pushing forward with his plan to pressure his vice president, Mike Pence, to throw the election his way during the congressional proceeding on Jan. 6.While some of the aides and lawyers were aghast by what might, and ultimately did, take place, others seemed unconcerned, especially those who were later named as Mr. Trump’s co-conspirators in the case.In one scene described in the indictment, a senior adviser to Mr. Trump warned the lawyer John Eastman just days before the Capitol was attacked that his plan to have Mr. Trump strong-arm Mr. Pence was “going to cause riots in the streets.”According to the indictment, Mr. Eastman “responded that there had previously been points in the nation’s history where violence was necessary to protect the republic.”More than 1,000 people have been charged so far with taking part in the Capitol attack, which caused millions of dollars’ worth of damage and injuries to more than 100 police officers. Among those accused are nearly 350 defendants charged with assaulting the police and 10 members of the Proud Boys and the Oath Keepers militia who were convicted at trial of seditious conspiracy, a crime that requires showing that physical force was used against the government.In December, the House select committee investigating Jan. 6 recommended that the Justice Department charge Mr. Trump with several federal crimes, including inciting insurrection — a count that would have directly placed the blame for the attack on Mr. Trump’s shoulders. But Mr. Smith’s prosecutors did not include that charge in the indictment.Instead, they focused on counts that detailed Mr. Trump’s wide-ranging machinations to remain in power in the weeks leading up to the attack and on how he took his time in issuing a plea for calm to his supporters once the attack was underway.At a news conference announcing the charges, Mr. Smith asserted that the assault on the Capitol was “fueled by lies,” but over the course of its 45 pages, the indictment itself never quite makes that accusation directly against Mr. Trump.And yet the charges did lay out how Mr. Eastman, who is identified in the indictment only as Co-Conspirator 2, and Jeffrey Clark, a loyalist in Mr. Trump’s Justice Department who appears as Co-Conspirator 4, understood and even accepted that violence might result from their plans to subvert the democratic process and keep Mr. Trump in the White House.Three days before the Capitol was attacked, the indictment says, a deputy White House counsel told Mr. Clark that there had been no voting fraud sufficient to change the results of the election and that if Mr. Trump nonetheless maintained his grip on power, there would be “riots in every major city in the United States.”Mr. Clark’s response, according to the indictment, was to bring up a federal law that allows the president to summon the military to quell domestic unrest.“That’s why there’s an Insurrection Act,” he said.For reasons that remain unknown, prosecutors chose not to include in the indictment any evidence from Cassidy Hutchinson, an aide to Mr. Trump’s former chief of staff Mark Meadows. In a gripping testimony last year in front of the House Jan. 6 committee, Ms. Hutchinson described how Mr. Trump, knowing his supporters were armed and threatening violence on Jan. 6, urged them to march to Capitol anyhow — and even sought to join them.Ms. Hutchinson told the panel that Mr. Trump had demanded that security checkpoints be removed outside his rally on the Ellipse, near the White House, even though he had been warned that some in the crowd had been spotted with weapons.“They’re not here to hurt me,” she quoted Mr. Trump as saying.In theory, Mr. Smith’s team could bring new charges against Mr. Trump at almost any time, using accounts like Ms. Hutchinson’s to support an accusation that Mr. Trump played some role in encouraging the violence at the Capitol. The incitement charge recommended by the House committee is written quite broadly, making it a crime to “incite, assist with or participate in” a rebellion or an insurrection against federal laws or government authority.Prosecutors could also try to connect Mr. Trump more directly with the violence through the statements made by scores of rioters charged in the Capitol attack who have said that they were answering Mr. Trump’s call when they traveled to Washington and joined in the assault.“Hey we’re going back to Washington January 6 — Trump has called all patriots,” an Iowa woman named Deborah Sandoval wrote on Facebook on Dec. 21, 2020, two days after Mr. Trump summoned his followers to a “wild” protest in the city. “If the electors don’t elect, we will be forced into civil war.”Still, prosecutors are often wary of bringing incitement charges because they typically involve behavior like speeches or social media posts that the First Amendment protects, within limits.And Mr. Trump’s lawyers have already signaled that he intends to use a First Amendment defense against the charges he is facing.During his speech before the attack, Mr. Trump did at one point tell his followers to march on the Capitol “peacefully,” and, after the building had been stormed, he posted messages on Twitter belatedly asking people in the crowd to “remain peaceful.”But prosecutors say that even though he issued those calls, he did not ask his supporters to leave the Capitol grounds until after 6 p.m. that day. And as he made that request, the indictment said, he continued to repeat his false claims that a “sacred landslide victory” had been “viciously stripped away” from him. More

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      Trump Election Charges Set Up Clash of Lies Versus Free Speech

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      The indictment of former President Donald J. Trump over his efforts to retain power accuses him of conspiracies built on knowing falsehoods. His supporters say he is protected by the First Amendment.Running through the indictment charging former President Donald J. Trump with conspiring to overturn the 2020 election was a consistent theme: He is an inveterate and knowing liar.The indictment laid out how, in the two months after Election Day, Mr. Trump “spread lies” about widespread election fraud even though he “knew that they were false.”Mr. Trump “deliberately disregarded the truth” and relentlessly disseminated them anyway at a “prolific” pace, the indictment continued, “to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.”Of course, Mr. Trump has never been known for fealty to truth.Throughout his careers in business and politics, he has sought to bend reality to his own needs, with lies ranging from relatively small ones, like claiming he was of Swedish and not German descent when trying to rent to Jewish tenants in New York City, to proclaiming that President Barack Obama was not born in the United States.If you repeat something enough, he has told confidants over time, people will believe it.By and large, this trait has served him well, helping him bluster and bluff his way through bankruptcies and then to the White House and through crises once he was there: personal scandals, two impeachments and a special counsel’s investigation when he was in office.But now he is being held to account in a way he never has been before for what a new special counsel, Jack Smith, is asserting was a campaign of falsehoods that undermined the foundations of democracy.Already, Mr. Trump’s lawyers and allies are setting out the early stages of a legal strategy to counter the accusations, saying that Mr. Trump’s First Amendment rights are under attack. They say Mr. Trump had every right to express views about election fraud that they say he believed, and still believes, to be true, and that the actions he took or proposed after the election were based on legal advice.Jack Smith, the special counsel, announced an indictment of former President Donald J. Trump in Washington on Tuesday.Doug Mills/The New York TimesThe indictment and his initial response set up a showdown between those two opposing assertions of principle: that what prosecutors in this case called “pervasive and destabilizing lies” from the highest office in the land can be integral to criminal plans, and that political speech enjoys broad protections, especially when conveying what Mr. Trump’s allies say are sincerely held beliefs.While a judge and jury will ultimately decide how much weight to give each, Mr. Trump and his allies were already on the offensive after the indictment.“So the First Amendment protects President Trump in this way: After 2020, he saw all these irregularities, he got affidavits from around the country, sworn testimony, he saw the rules being changed in the middle of the election process — as a president, he’s entitled to speak on those issues,” Mr. Trump’s defense lawyer in the case, John Lauro, said on Wednesday in an interview on CBS.”What the government would have to prove in this case, beyond a reasonable doubt, is that speech is not protected by the First Amendment, and they’ll never be able to do that,” he said.Representative Elise Stefanik of New York, the No. 3 Republican in the House, said in a statement that Mr. Trump had “every right under the First Amendment to correctly raise concerns about election integrity in 2020.”Representative Gary Palmer of Alabama, the chairman of the Republican Policy Committee, called the indictment a “criminalization of disinformation and misinformation, which raises serious concerns about the public’s right to speak openly in opposition to policies they oppose.”Legal experts were skeptical about the strength of those claims as a defense. They pointed out that the indictment said on its second page that all Americans had the right to say what they wanted about the election — even if it was false. But, the indictment asserts, it is illegal to use those false claims to engage in criminal conduct, the experts said.An individual’s free-speech rights essentially end as soon as those words become evidence of criminality, they said. In the case of the indictment against Mr. Trump, the prosecutors argue that Mr. Trump used his statements to persuade others to engage in criminal conduct with him, like signing fake slates of electors or pressuring Vice President Mike Pence to block or delay Electoral College certification of President Biden’s victory.According to the indictment, Mr. Trump “knowingly” used “false claims of election fraud” to try to “convince the vice president to accept the defendant’s fraudulent electors, reject legitimate electoral votes or send legitimate electoral votes to state legislatures for review rather than counting them.”The indictment goes on to say that when those efforts failed, Mr. Trump turned to using the crowd at the rally on the Ellipse “to pressure the vice president to fraudulently alter the election results.”Samuel W. Buell, a professor of law at Duke University and a lead federal prosecutor in the Justice Department’s prosecution of Enron, said that it “won’t work legally but it will have some appeal politically, which is why he is pushing it.”“There is no First Amendment privilege to commit crimes just because you did it by speaking,” Mr. Buell said.Referring to both public and private remarks, Mr. Buell said that “there is no First Amendment privilege for giving directions or suggestions to other people to engage in illegal acts.”Referring to the fictional television mafia boss Tony Soprano, Mr. Buell added, “Tony Soprano can’t invoke the First Amendment for telling his crew he wants someone whacked.”For decades, Mr. Trump’s penchant for falsehoods and exaggerations was well known in New York City. He was so distrusted by Mayor Ed Koch in the 1980s that one of the mayor’s deputies, Alair Townsend, famously quipped, “I wouldn’t believe Donald Trump if his tongue were notarized.”Mr. Trump spoke with journalists by phone while pretending to be a spokesman representing himself, in order to leak information about his business or his personal life. He claimed to have dated women who denied being involved with him. He claimed that he lived on the 66th through 68th floors of Trump Tower, which in fact has only 58 floors.Reaching the presidency did not lead to a change in his habits. The Washington Post’s fact checker identified more than 30,000 false or misleading claims from him over his four years in office, a figure equivalent to 21 a day.Mr. Trump has already tried to invoke the First Amendment in civil cases related to the attacks on the Capitol on Jan. 6, 2021. In February 2022, a federal judge in Washington ruled that lawsuits related to whether he incited the crowd that stormed the Capitol could proceed, in part because the First Amendment did not protect the speech he gave on the Ellipse before the riot.“Only in the most extraordinary circumstances could a court not recognize that the First Amendment protects a president’s speech,” Judge Amit P. Mehta of the Federal District Court in Washington ruled. “But the court believes this is that case. Even presidents cannot avoid liability for speech that falls outside the expansive reach of the First Amendment. The court finds that in this one-of-a-kind case the First Amendment does not shield the president from liability.”The experts and defense lawyers who read the indictment against Mr. Trump said that claiming that he was relying on the advice of lawyers was likely to provide Mr. Trump with a stronger defense than if he invoked the First Amendment.In the interview on CBS, Mr. Lauro leaned into that argument, saying that Mr. Trump had a “smoking gun of innocence” in a memo that the conservative legal scholar John Eastman wrote for him. The memo said Mr. Trump could ask Mr. Pence to pause the congressional certification of the election. Mr. Eastman was not a White House lawyer at the time.“John Eastman, who is an eminent scholar, gave the president an option — several options,” Mr. Lauro said.Alan Feuer More

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      Trump Indictment Leaves Alleged Co-Conspirators Facing Tough Choices

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      The special counsel’s decision not to charge six people said to have played critical roles in the effort to keep Donald Trump in office seemed to give them a chance to cooperate with prosecutors. Some appear to be unwilling.By the time Jack Smith, the special counsel, was brought in to oversee the investigation of former President Donald J. Trump’s attempts to overturn the 2020 election, the inquiry had already focused for months on a group of lawyers close to Mr. Trump.Many showed up as subjects of interest in a seemingly unending flurry of subpoenas issued by a grand jury sitting in the case. Some were household names, others less familiar. Among them were Rudolph W. Giuliani, John Eastman, Jeffrey Clark, Kenneth Chesebro and Sidney Powell.On Tuesday, most of these same lawyers showed up again — albeit unnamed — as Mr. Trump’s co-conspirators in a federal indictment accusing him of a wide-ranging plot to remain in office despite having lost the election.The appearance of the lawyers at the center of the case suggests how important prosecutors judged them to be to the conspiracy to execute what one federal judge who considered some of the evidence called “a coup in search of a legal theory.”The lawyers’ placement at the heart of the plot while remaining uncharged — for now — raised questions about why Mr. Smith chose to bring the indictment with Mr. Trump as the sole defendant.In complex conspiracy cases, prosecutors often choose to work from the bottom up, charging subordinates with crimes to put pressure on them to cooperate against their superiors. It remains unclear precisely what Mr. Smith may be seeking to accomplish by flipping that script.Some legal experts theorized on Wednesday that by indicting Mr. Trump alone, Mr. Smith might be seeking to streamline and expedite the case ahead of the 2024 election. If the co-conspirators were indicted, that would almost certainly slow down the process, potentially with the other defendants filing motions and seeking to splinter their cases from Mr. Trump’s.“I think it’s a clean indictment to just have Donald Trump as the sole defendant,” said Soumya Dayananda, a former federal prosecutor who served as a senior investigator for the House Jan. 6 committee. “I think it makes it easier to just tell the story of what his corrupt activity was.”Another explanation could be that by indicting Mr. Trump — and leaving open the threat of other charges — Mr. Smith was delivering a message: cooperate against Mr. Trump, or end up indicted like him. By not charging them for now, Mr. Smith could be giving the co-conspirators an incentive to reach a deal with investigators and provide information about the former president.While the threat of prosecution could loom indefinitely, it is possible that the judge overseeing the case might soon ask Mr. Smith’s team to disclose whether it plans to issue a new indictment with additional defendants. And some legal experts expect additional charges to come.“It’s clearly a strategic decision not to charge them so far, because it’s out of the ordinary,” said Joyce Vance, a former U.S. attorney who is now a University of Alabama law professor. “I don’t see an advantage to giving people this culpable a pass.”That said, at least one of the co-conspirators — Mr. Giuliani — and another possible co-conspirator — Boris Epshteyn, a lawyer and strategic adviser close to Mr. Trump — have already sat with prosecutors for extended voluntary interviews. To arrange for such interviews, prosecutors typically consent not to use any statements made during the interview in future criminal proceedings against them unless the subject is determined to have been lying.Boris Epshteyn has sat with prosecutors for an extended voluntary interview.Jim Lo Scalzo/EPA, via ShutterstockBut those protections do not prevent Mr. Smith from charging anyone who sat for an interview. He still has the option of filing charges against any or all of the co-conspirators at more or less any time he chooses.He used that tactic in a separate case against Mr. Trump related to the former president’s mishandling of classified documents, issuing a superseding indictment last week that accused a new defendant — the property manager of Mr. Trump’s private club and residence in Florida — of being part of a conspiracy to obstruct the government’s attempts to retrieve the sensitive materials.Some of the lawyers named as Mr. Trump’s co-conspirators in the indictment filed on Tuesday have effectively acknowledged to being named in the case through their lawyers.In a statement issued Tuesday night, Robert J. Costello, a lawyer for Mr. Giuliani, said it “appears” as if the former New York City mayor were Co-Conspirator 1. The statement also leveled a blistering attack on the indictment — and a defense of Mr. Trump — suggesting that Mr. Giuliani was an unlikely candidate for cooperating against the former president.“Every fact that Mayor Giuliani possesses about this case establishes the good-faith basis President Donald Trump had for the action that he took,” Mr. Costello said.Not long after, Charles Burnham, a lawyer for Mr. Eastman, implicitly admitted his client’s role as Co-Conspirator 2 by issuing a statement “regarding United States v. Donald J. Trump indictment” in which he insisted Mr. Eastman was not “involved in plea bargaining.”John Eastman after a hearing in Los Angeles. His lawyer implicitly admitted his client’s role as Co-Conspirator 2.Jae C. Hong/Associated Press“The fact is, if Dr. Eastman is indicted, he will go to trial,” the statement said. “If convicted, he will appeal.”Some sleuthing was required to determine the identities of the other co-conspirators.The indictment refers to Co-Conspirator 3, for instance, as a lawyer whose “unfounded claims of election fraud” sounded “crazy” to Mr. Trump.That description fits Ms. Powell. She was best known during the postelection period for filing four lawsuits in key swing states claiming that a cabal of bad actors — including Chinese software companies, Venezuelan officials and the liberal financier George Soros — conspired to hack into voting machines produced by Dominion Voting Systems and flip votes from Mr. Trump to Mr. Biden.Mr. Clark is a close match to the description of Co-Conspirator 4, who is identified in the charges as a Justice Department official who worked on civil matters and plotted with Mr. Trump to use the department to “open sham election crime investigations” and “influence state legislatures with knowingly false claims of election fraud.”Against the advice of top officials at the Justice Department, Mr. Trump sought to install Mr. Clark, a high-ranking official in the department’s civil division, as the acting attorney general in the waning days of his administration after Mr. Clark agreed to support his claims of election fraud.Sidney Powell was best known during the postelection period for filing four lawsuits in key swing states claiming that a cabal of bad actors conspired to flip votes from Mr. Trump to Mr. Biden.Erin Schaff/The New York TimesMr. Clark also helped draft a letter to Gov. Brian Kemp of Georgia, a Republican, urging him to call the state legislature into a special session to create a slate of false pro-Trump electors even though the state was won by Joseph R. Biden Jr.A batch of documents obtained by The New York Times helped to identify Mr. Chesebro as Co-Conspirator 5, who is described in the indictment as a lawyer who helped to craft and implement “a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding.”The emails obtained by The Times laid out a detailed picture of how several lawyers, reporting to Mr. Giuliani, carried out the so-called fake elector plot on behalf of Mr. Trump, while keeping many of their actions obscured from the public — and even from other lawyers working for the former president.Several of these emails appeared as evidence in the indictment of Mr. Trump, including some that showed lawyers and the false electors they were seeking to recruit expressing reservations about whether the plan was honest or even legal.“We would just be sending in ‘fake’ electoral votes to Pence so that ‘someone’ in Congress can make an objection when they start counting votes, and start arguing that the ‘fake’ votes should be counted,” a lawyer based in Phoenix who helped organize the pro-Trump electors in Arizona wrote to Mr. Epshteyn on Dec. 8, 2020.In another example, Mr. Chesebro wrote to Mr. Giuliani that two electors in Arizona “are concerned it could appear treasonous.”At one point, the indictment quotes from a redacted message sent by an Arizona lawyer on Dec. 8, 2020, that reads, “I just talked to the gentleman who did that memo, [Co-Conspirator 5]. His idea is basically. …”Jeffrey Clark appears to be a close match to Co-Conspirator 4, who is described in the charges as a Justice Department official who worked on civil matters and plotted with Mr. Trump.Kenny Holston/The New York TimesAn unredacted version of that email obtained by The Times has the name “Ken Cheseboro” in the place of Co-Conspirator 5.The indictment also cites a legal memo dated Nov. 18, 2020, that proposed recruiting a group of Trump supporters who would meet and vote as purported electors for Wisconsin. The court filing describes it as having been drafted by Co-Conspirator 5. That memo, also obtained by The Times, shows it was written by Mr. Chesebro.A separate email, reviewed by The Times, gives a hint that Mr. Epshteyn could be Co-Conspirator 6.The email — bearing a subject line reading, “Attorney for Electors Memo” — was sent on Dec. 7, 2020, to Mr. Giuliani and Mr. Giuliani’s son, Andrew.“Dear Mayor,” it reads. “As discussed, below are the attorneys I would recommend for the memo on choosing electors,” adding the names of lawyers in seven states.Paragraph 57 of the indictment asserts that Co-Conspirator 1, or Mr. Giuliani, spoke with Co-Conspirator 6 about lawyers who “could assist in the fraudulent elector effort in the targeted states.”It also says that Co-Conspirator 6 sent an email to Mr. Giuliani “identifying attorneys in Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin” — the same seven states mentioned in the email reviewed by The Times.Maggie Haberman More

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      Why Jack Smith Had to Bring This Indictment Against Trump

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      Donald Trump has now been indicted three times, accused of crimes occurring before, during and after his presidency. The latest indictment alleges facts from all quarters to prove his criminality: from the vice president to the White House counsel and the heads of the Justice Department, the Department of Homeland Security and the Office of National Intelligence, as well as many others. All are Republican loyalists.But the indictment does more: It skillfully avoids breathing air into a Trump claim of selective prosecution. To not have brought this case against Mr. Trump would have been an act of selective nonprosecution. The Justice Department has already charged and obtained convictions for myriad foot soldiers related to the attack on the Capitol on Jan. 6, 2021, including charging well over 300 people for obstructing the congressional proceedings. In this indictment, the special counsel Jack Smith wisely brings that same charge, but now against the alleged leader of the effort to thwart the transfer of power.That charge of obstruction and conspiracy to defraud the United States in the administration of elections are entirely fitting for the conduct alleged in the indictment. In a civil case last year, the Federal District Court judge David Carter held that Mr. Trump and John Eastman likely engaged in a criminal conspiracy under both those statutes in their schemes to organize false electors and pressure the vice president. Mr. Smith has now said he can prove the same conduct beyond a reasonable doubt.Although the Jan. 6 select committee referred Mr. Trump for investigation for inciting an insurrection, Mr. Smith wisely demurred. The Justice Department has not charged that offense in any other case involving the attack on the Capitol, and insurrection has not been charged since the 19th century. Of course, no president has engaged in it since then — but since no one else has been charged with that crime relating to Jan. 6, it likely would have been an issue. And since the penalty for the insurrection offense is that the defendant would not be eligible to hold federal office, it would have fueled a claim of weaponizing the Justice Department to defeat a political rival.Mr. Trump and others like him will of course continue to assert that the Justice Department has been politically weaponized. That claim has it exactly backward.To not charge Mr. Trump for trying to criminally interfere with the transfer of power to a duly elected president would be to politicize the matter. It would mean external political considerations had infected the Justice Department’s decision-making and steered the institution away from its commitment to holding everyone equally accountable under the law.What those circling their wagons around Mr. Trump are in effect asking for is a two-tiered system, in which the people who were stirred by lies to interrupt the congressional certification are held to account but not the chief instigator. That injustice has not been lost on judges overseeing cases related to Jan. 6. In the 2021 sentencing of John Lolos — a 48-year-old man with no criminal record who traveled from Seattle to hear Mr. Trump’s speech at the Ellipse before being convinced to “storm” the Capitol — Judge Amit Mehta commented on the incongruity in the D.C. courtroom.“People like Mr. Lolos were told lies, fed falsehoods, and told that our election was stolen when it clearly was not,” the judge said. He went on to add that those “who created the conditions that led to Mr. Lolos’s conduct” and the events of Jan. 6 have “in no meaningful sense” been held “to account for their actions and their words.”We are now on the doorstep of the sort of accountability that Judge Mehta found lacking.That is what also makes this indictment of the former president different. Where both the Manhattan hush money case and classified documents case have been, in some part, mired in discussions of whataboutism, the 2020 election interference indictment is where whataboutism goes to die.In this case, the Trump stratagem is unmasked. Given the record of robust prosecutions of Jan. 6 foot soldiers and Mr. Trump’s responsibility for their actions, he has had to resort to saying the Capitol attack was good, and he and his enablers have lauded convicted felons as heroes and “political prisoners.” Mr. Trump’s continued statements in favor of the Jan. 6 defendants can and likely will be used against him in any trial.As the narrative of the indictment lays out, Mr. Trump’s schemes — to sell the big lie and promote election fraud even when he privately conceded to advisers the claims were “unsupported” and “crazy” — are what contributed to the attack of Jan. 6. And it is a relief that the indictment includes Mr. Trump’s role and responsibility in that violence. Many Americans would not understand the Justice Department focusing only on bureaucratic and procedural efforts to affect the congressional certification.As Senator Mitch McConnell said at the close of Mr. Trump’s second impeachment trial, “There is no question — none — that President Trump is practically and morally responsible for provoking the events of the day.”He added: “We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one.”What is also clear from the indictment is that Mr. Trump will most likely not be the last white-collar defendant charged for the set of crimes it sets out. Mr. Smith clearly, and properly, considers that the six co-conspirators — parts of the indictment describe actions by co-conspirators that correspond with those taken by, for example, Mr. Eastman and Rudy Giuliani — committed federal offenses that threatened the core of our democracy. The rule of law cannot tolerate those actors facing charges with the main protagonist going scot free.The main task ahead for Mr. Smith is getting his cases to trial before the general election. But the true test ahead will not be for Mr. Smith. It will be for us: Will Americans care about the rule of law enough to vote for it? The courtroom is a place where facts and law still matter, but the criminal cases against Mr. Trump will test whether the same can be said for the ballot box.Ryan Goodman, a law professor at the New York University School of Law, is a co-editor in chief of Just Security. Andrew Weissmann, a senior prosecutor in Robert Mueller’s special counsel investigation, is a professor at N.Y.U. School of Law and a host of the podcast Prosecuting Donald Trump.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      The Charges Against Trump for Conspiring to Overturn the Election

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      Stella Tan and Rachel Quester and Listen and follow The DailyApple Podcasts | Spotify | Stitcher | Amazon MusicOn Tuesday afternoon, the special counsel Jack Smith filed criminal charges against former President Donald Trump over his wide-ranging attempt to overthrow the 2020 election.Luke Broadwater, a congressional reporter for The Times, talks us through the indictment and the evidence it lays out that Trump participated in an illegal conspiracy to remain in power.On today’s episodeLuke Broadwater, a congressional reporter for The New York Times.The indictment accuses Donald Trump of three conspiracies and obstructing or attempting to obstruct an official proceeding.Maddie McGarvey for The New York TimesBackground readingThe New York Times’s live coverage of the indictment.Four takeaways from the indictment.There are a lot of ways to listen to The Daily. Here’s how.We aim to make transcripts available the next workday after an episode’s publication. You can find them at the top of the page.Luke Broadwater More

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      Why Jack Smith’s Jan. 6 Trump Indictment Is So Smart

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      This is the indictment that those who were horrified by the events of Jan. 6, 2021, have been waiting for. The catalog of misdeeds that Donald Trump is accused of is extensive, some reflected in other prosecutions over classified documents and hush-money payments or in civil lawsuits.But this case — a sitting U.S. president’s assault on democracy — is by far the most consequential. And from the looks of this indictment, the prosecution’s case is going to be thorough and relentless.The charging decisions in the indictment reflect smart lawyering by the special counsel Jack Smith and his team. The beauty of this indictment is that it provides three legal frameworks that prosecutors can use to tell the same fulsome story.It will allow prosecutors to put on a compelling case that will hold Mr. Trump fully accountable for the multipronged effort to overturn the election. At the same time, it avoids legal and political pitfalls that could have delayed or derailed the prosecution.The lead charge, conspiracy under 18 U.S.C. 371, is a go-to charge for federal prosecutors. Count 1 charges a conspiracy to defraud the United States by obstructing and defeating the lawful counting of votes and certification of the election. Conspiracy is the perfect vehicle for describing a complex criminal scheme and identifying all the actors and everything they did.The conspiracy charge, which makes up most of the indictment, encompasses the tentacles of the scheme to overturn the election results. Pressuring state officials to overturn their elections, recruiting slates of fake electors from seven states, trying to corrupt the Justice Department to further the scheme, pressuring Mike Pence to throw out lawful votes and directing the mob to the Capitol on Jan. 6 — all are included as part of a single overarching conspiracy to defraud the United States.A conspiracy requires two or more people who agree to participate. This indictment lists but does not yet charge or formally identify six Trump co-conspirators. Mr. Smith clearly has enough evidence to charge those unindicted co-conspirators but has chosen not to — for now. This, too, is a smart tactical decision.Proceeding against Mr. Trump alone streamlines the case and gives Mr. Smith the best chance for a trial to be held and concluded before the 2024 presidential election. It’s possible some of the unindicted co-conspirators will cut a deal and testify for the prosecution. If not, there is plenty of time to charge them later.Counts 2 and 3 are conspiracy to obstruct an official proceeding and obstruction of a proceeding, under 18 U.S.C. Section 1512. Prosecutors have successfully used this statute to charge hundreds of the Jan. 6 Capitol rioters, including members of the Oath Keepers and Proud Boys, with disrupting the joint congressional proceeding to certify the election results.But when it comes to Mr. Trump and the senior people around him, this obstruction charge is much broader than the assault on the Capitol. The conspiracy to obstruct justice again encompasses all the different methods he and his allies used to seek to overturn the election results by thwarting the proceeding to certify the election. In addition, his dispatching supporters to the Capitol and then taking no steps to stop them for three hours potentially makes him liable for aiding and abetting that obstruction — even though he did not set foot in the Capitol himself. And aiding and abetting is part of the theory of the obstruction charge in Count 3.Count 4 is a civil rights violation under 18 U.S.C. Section 241. That statute makes it a crime to “injure, oppress, threaten or intimidate” any people in their exercise and enjoyment of rights guaranteed by the Constitution or laws. Based on the same evidence, this charge alleges that Mr. Trump and others conspired to injure one or more people by depriving them of their right to have their votes counted.For each of these charges, all aspects of the effort to overturn the election, including those that took place well before Jan. 6, may be introduced as part of a single multifaceted scheme and part of one story that proves all the charges.Prosecutors love having alternative legal theories underlying a single presentation of evidence. It’s a belt-and-suspenders approach: If a legal issue arises that weakens or eliminates one charge, the others remain, and the case can continue. And within the scheme are yet more backstops: If the evidence for one aspect of the scheme falters, the remaining aspects are still more than sufficient to prove the charge.Mr. Smith has also avoided some potential land mines that could be lurking in other charges.One charge that was not included in the indictment falls under 18 U.S.C. Section 2383, which makes it a crime to incite, assist or engage in a rebellion or insurrection against the United States or to give aid and comfort to such an insurrection. This charge was part of the referral from the Jan. 6 committee.It would have faced some potentially tricky First Amendment issues, to the extent it would have relied on Mr. Trump’s speech at the Ellipse on Jan. 6 to allege that he incited the riot. I believe those issues could be overcome, but the free speech battles over that charge would have been time-consuming and distracting because the speech could be easily characterized as a political rally.Seditious conspiracy under 18 U.S.C. Section 2384 is also absent. A number of Proud Boys and Oath Keepers have been convicted of violating that law, which prohibits conspiracies to overthrow the government. But violating the statute requires the use of force. Conviction presumably would require proof that Mr. Trump intended the Capitol riot to take place and that it was not just a political protest that got out of hand. That proof may be there, but the issue could easily become a major distraction.There will be those who say any case that does not charge Mr. Trump with insurrection or sedition is a whitewash that fails to hold him properly accountable. I think those critics are wrong. These charges will allow prosecutors to present the sweeping, multistate scheme to overturn the election, with all its different aspects, to the jury and the public. They are serious felony charges that carry hefty penalties.Although it might have been psychologically gratifying to see Mr. Trump charged with sedition, the name of the legal charge is less important than the facts that will make up the government’s case.This indictment presents detailed and overwhelming allegations. It reflects sound legal and tactical decisions that should allow the government to move quickly and put on a powerful case. The most significant prosecution of Mr. Trump is off to a strong start.Randall D. Eliason is a former chief of the fraud and public corruption section at the U.S. Attorney’s Office for the District of Columbia and teaches white-collar criminal law at George Washington University Law School. He writes the Sidebars blog.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Trump Indicted in His Push to Overturn the 2020 Election

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      Former President Donald J. Trump was indicted on Tuesday in connection with his widespread efforts to overturn the 2020 election following a sprawling federal investigation into his attempts to cling to power after losing the presidency.The indictment, filed by the special counsel Jack Smith in Federal District Court in Washington, accuses Mr. Trump of three conspiracies: one to defraud the United States; a second to obstruct an official government proceeding, the certification of the Electoral College vote; and a third to deprive people of a civil right, the right to have their votes counted. Mr. Trump was also charged with a fourth count of obstructing or attempting to obstruct an official proceeding.“Each of these conspiracies — which built on the widespread mistrust the defendant was creating through pervasive and destabilizing lies about election fraud — targeted a bedrock function of the United States federal government: the nation’s process of collecting, counting and certifying the results of the presidential election,” the indictment said.The charges signify an extraordinary moment in United States history: a former president, in the midst of a campaign to return to the White House, being charged over attempts to use the levers of government power to subvert democracy and remain in office against the will of voters.In sweeping terms, the indictment described how Mr. Trump and six co-conspirators employed a variety of means to reverse his defeat in the election almost from the moment that voting ended.It depicted how Mr. Trump promoted false claims of fraud, sought to bend the Justice Department toward supporting those claims and oversaw a scheme to create false slates of electors pledged to him in states that were actually won by Joseph R. Biden Jr. And it described how he ultimately pressured his vice president, Mike Pence, to use the fake electors to subvert the certification of the election at a joint session of Congress on Jan. 6, 2021, that was cut short by the violence at the Capitol.The indictment did not name the alleged co-conspirators, but the descriptions of their behavior match publicly known episodes involving prominent people around Mr. Trump.The behavior of “Co-conspirator 1” appears to align with that of Rudolph W. Giuliani, Mr. Trump’s personal lawyer whom he put in charge of efforts to deny the transfer of power after his main campaign lawyers made clear it was over. Mr. Giuliani’s lawyer, Robert J. Costello, acknowledged in a statement that it “appears that Mayor Giuliani is alleged to be co-conspirator No. 1.”The description of “Co-conspirator 2” tracks closely with that of John Eastman, a California law professor who served as the architect of the plan to pressure Mr. Pence.The co-conspirators could be charged at any point, and their inclusion in the indictment — even unnamed — places pressure on them to cooperate with investigators.Many of the details in the charges were familiar, having appeared either in news accounts or in the work of the House select committee investigating Jan. 6. There were descriptions of Mr. Trump’s attempt to install a loyalist, Jeffrey Clark, who appears to be a co-conspirator in the case, atop the Justice Department and to strong-arm the secretary of state of Georgia into finding him enough votes to win the election in that state.There were also references to Mr. Trump posting a message on Twitter in mid-December 2020 calling for a “wild” protest in Washington on Jan. 6, and to him pressuring Mr. Pence to try to throw the election his way during the joint session of Congress that day.But the indictment also contained some snippets of new information, such as a description of Mr. Trump telling Mr. Pence, “You’re too honest,” as the vice president pushed back on Mr. Trump’s pressure to interfere in the certification of Mr. Biden’s victory.It also included an account of Mr. Trump telling someone who asked if he wanted additional pressure put on Mr. Pence that “no one” else but him needed to speak with the vice president.Mr. Smith, in drafting his charging document, walked a cautious path in connecting Mr. Trump to the mob attack on the Capitol. The indictment mentioned Mr. Trump’s “exploitation of the violence and chaos” at the building that day, but did not accuse him of inciting the riot.It also laid out how Mr. Trump was repeatedly told by multiple people, including top officials in his campaign and at the Justice Department, that he had lost the election and that his claims that he had been cheated were false. That sort of evidence could help prosecutors prove their accusations by establishing Mr. Trump’s intent.Mr. Trump’s constant claims of widespread election fraud “were false, and the defendant knew they were false,” the indictment said, adding that he was told repeatedly that his assertions were untrue.“Despite having lost, the defendant was determined to remain in power,” the indictment said.Mr. Trump has been summoned for his initial court appearance in the case on Thursday afternoon before a magistrate judge in Federal District Court in Washington, the special counsel’s office said. Ultimately, a trial date and a schedule for pretrial motions will be set, proceedings that are likely to extend well into the presidential campaign.Mr. Trump’s lead lawyer on the case, John Lauro, laid out what appeared to be the beginning of his defense, telling Fox News, “I would like them to try to prove beyond a reasonable doubt that Donald Trump believed that these allegations” about voter fraud “were false.”The charges in the case came more than two and a half years after a pro-Trump mob — egged on by incendiary speeches by Mr. Trump and his allies — stormed the Capitol on Jan. 6 in the worst attack on the seat of Congress since the War of 1812.They also came a little more than seven months after Attorney General Merrick B. Garland appointed Mr. Smith, a career federal prosecutor, to oversee both the election tampering and classified documents inquiries into Mr. Trump. They followed a series of high-profile hearings last year by the House Jan. 6 committee, which laid out extensive evidence of Mr. Trump’s efforts to reverse the election results.Mr. Garland moved to name Mr. Smith as special counsel in November, just days after Mr. Trump declared that he was running for president again.Jack Smith, the special counsel, said at a news conference on Tuesday that the Capitol riot was “fueled by lies.”Doug Mills/The New York TimesIn a brief appearance before reporters, Mr. Smith set out what he said was the former president’s moral, as well as legal, responsibility for violence at the Capitol, saying the riot was “fueled by lies” — Mr. Trump’s lies.Mr. Trump, the front-runner for the Republican nomination, has incorporated attacking the investigations into his campaign messaging and fund-raising. His advisers have been blunt in private conversations that they see his winning the election as crucial to undoing the charges against him.In a statement, Mr. Trump denounced the indictment.“Why did they wait two and a half years to bring these fake charges, right in the middle of President Trump’s winning campaign for 2024?” he said, calling it “election interference” and comparing the Biden administration to Nazi Germany.The judge assigned to Mr. Trump’s case, Tanya S. Chutkan, has been a tough jurist in cases against Jan. 6 rioters — and in a case that involved Mr. Trump directly. Appointed by President Barack Obama, she has routinely issued harsh penalties against people who stormed the Capitol.She also denied Mr. Trump’s attempt to avoid disclosing documents to the Jan. 6 committee, ordering him to turn over the material and writing, “Presidents are not kings.”Mr. Trump now faces two separate federal indictments. In June, Mr. Smith brought charges in Florida accusing Mr. Trump of illegally holding on to a highly sensitive trove of national defense documents and then obstructing the government’s attempts to get them back. The scheme charged by Mr. Smith on Tuesday in the election case played out largely in the two months between Election Day in 2020 and the attack on the Capitol. During that period, Mr. Trump took part in a range of efforts to retain power despite having lost the presidential race.In addition to federal charges in the election and documents cases, Mr. Trump also faces legal troubles in state courts.He has been charged by the Manhattan district attorney’s office in a case that centers on hush money payments made to the porn actress Stormy Daniels in the run-up to the 2016 election.The efforts by Mr. Trump and his allies to reverse his election loss are also the focus of a separate investigation by the district attorney in Fulton County, Ga. That inquiry appears likely to generate charges this month.It seems likely that Mr. Trump will face the prospect of at least three criminal trials next year, even as he is campaigning for the presidency. The Manhattan trial is scheduled to begin in March, while the federal documents case in Florida is set to go to trial in May.Glenn Thrush More

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      The Trial America Needs

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      At last. The federal criminal justice system is going to legal war against one of the most dishonest, malicious and damaging conspiracies in the history of the United States. Tuesday’s indictment of Donald Trump, brought by the special counsel Jack Smith’s office, is the culmination of a comprehensive effort to bring justice to those who attempted to overthrow the results of an American presidential election.In the weeks after the 2020 election, the legal system was in a defensive crouch, repelling an onslaught of patently frivolous claims designed to reverse the election results. In the months and years since the violent insurrection on Jan. 6, 2021, the legal system has switched from defense to offense. With all deliberate speed, prosecutors first brought charges against Trump’s foot soldiers, the men and women who breached the Capitol. Next, prosecutors pursued the organizers of Trumpist right-wing militias, the Proud Boys and Oath Keepers, who had engaged in a seditious conspiracy to keep Trump in the White House.And now, Smith is pursuing Trump himself — along with six yet unnamed co-conspirators — alleging criminal schemes that reached the highest level of American government. This is the case that, if successful, can once and for all strip Trump of any pretense of good faith or good will. But make no mistake, the outcome of this case is uncertain for exactly the reason it’s so important: So very much of the case depends on Trump’s state of mind.At the risk of oversimplifying an indictment that contains four distinct counts — conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of an official proceeding and conspiracy against rights — it can be broken down into two indispensable components. First, it will be necessary to prove what Trump knew. Second, it will be necessary to prove what he did. Let’s take, for example, the first count of the indictment: 18 U.S.C. Section 371, conspiracy to defraud the United States. The statute is designed to criminalize any interference or obstruction of a “lawful governmental function” by “deceit, craft or trickery.”There’s little doubt that Trump conspired to interfere with or obstruct the transfer of power after the 2020 election. But to prevail in the case, the government has to prove that he possessed an intent to defraud or to make false statements. In other words, if you were to urge a government official to overturn election results based on a good faith belief that serious fraud had altered the results, you would not be violating the law. Instead, you’d be exercising your First Amendment rights.The indictment itself recognizes the constitutional issues in play. In Paragraph 3, the prosecutors correctly state that Trump “had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.”Thus, it becomes all-important for the prosecution to prove, beyond a reasonable doubt, that Trump knew he lost. Arguably the most important allegations in the indictment detail the many times that senior administration officials — from the vice president to the director of national intelligence to senior members of the Justice Department to senior White House lawyers — told him that there was no fraud or foreign interference sufficient to change the results of the election. That’s why it’s vitally important for the prosecution to cite, for example, the moment when Trump himself purportedly described one of his accused co-conspirators’ election fraud claims as “crazy.”The strong constitutional protection for efforts to influence or persuade the government makes the intent element inescapable, no matter the count in the indictment. While there are certainly nuances in the other counts regarding the precise form of proof necessary to establish criminal intent, the fact remains that the prosecution will have to utterly demolish the idea that Trump possessed a good-faith belief that he had won the election.But that’s precisely why this case is so important — more important than any previous Trump indictment. If the prosecution prevails, it will only be because it presented proof beyond a reasonable doubt that the election fraud claims that a substantial percentage of Americans still believe to be true were not only false but were also known to be false when they were made.I am not naïve. I know that not even a guilty verdict will change the perceptions of many of Trump’s most loyal supporters. As my Times colleague Nate Cohn wrote on Monday, “The MAGA base doesn’t support Mr. Trump in spite of his flaws. It supports him because it doesn’t seem to believe he has flaws.” The perceptions of these supporters may never change. They may remain loyal to Trump as long as they live.At the same time, however, a successful federal trial would strip Trump’s defenders of key talking points — that his voter fraud and vote manipulation claims have never been fully tested, that the House Jan. 6 committee was nothing but a one-sided show trial and that a proper cross-examination would expose the weakness of the government’s claims. Trump will have his opportunity to challenge the government’s case. His lawyers will have the ability to cross-examine opposing witnesses. We will see his best defense, and a jury will decide whether the prosecution prevails.The case is no slam dunk. I agree with the Politico Magazine columnist and former prosecutor Renato Mariotti, who stated that it is “not as strong” as the federal documents case against Trump. But that’s because the Mar-a-Lago documents case is exceptionally strong and clear. A former Trump administration attorney, Ty Cobb, has described the evidence as “overwhelming.” The facts appear to be uncomplicated. By contrast, the facts underlying this new indictment are anything but simple. And Trump possesses legal defenses — such as challenging the scope and applicability of the relevant statutes — that he won’t have in his federal trial for withholding documents.Yet if a prosecutor believes — as Smith appears to — that he can prove Trump knew his claims were false and then engineered a series of schemes to cajole, coerce, deceive and defraud in order to preserve his place in the White House, it would be a travesty of justice not to file charges.Consider some of the claims in the case. Paragraph 66 of the indictment says that Trump directed “fraudulent electors” to convene “sham proceedings” to cast “fraudulent electoral ballots” in his favor. Paragraph 31, quoting audio recordings, claims that Trump told the Georgia secretary of state that he needed to “find” 11,780 votes and said that the secretary of state and his counsel faced a “big risk” of criminal prosecution if they (as the special counsel describes it) “failed to find election fraud as he demanded.”This is but the tip of the iceberg of the wrongdoing Trump is accused of. But those two claims alone — even leaving aside the events of Jan. 6 and the host of other Trump efforts to overturn the election — merit bringing charges.Millions of Americans believe today that Joe Biden stole the presidency. They believe a series of demonstrable, provable lies, and their belief in those lies is shaking their faith in our republic and, by extension, risking the very existence of our democracy. There is no sure way to shake their convictions, especially if they are convinced that Trump is the innocent victim of a dark and malign deep state. But the judicial system can expose his claims to exacting scrutiny, and that scrutiny has the potential to change those minds that are open to the truth.Smith has brought a difficult case. But it’s a necessary case. Foot soldiers of the Trump movement are in prison. Its allied militia leaders are facing justice. And now the architect of our national chaos will face his day in court. This is the trial America needs.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More